The court correctly emphasized that companies’ organizational structure of large legal departments with broad responsibilities imposes adverse consequences for the in-house lawyer seeking cover of the corporate attorney-client privilege. And these consequences appear more dire when corporate email is involved, with the court stating that “the advent of email has added to the difficulty of determining the purposes and intent of communications that involve corporate legal counsel.” The court offered a few tips regarding email communications:

When a communication is simultaneously emailed to a lawyer and non-lawyer, the corporation cannot claim that the primary purpose of the communication was for legal advice or assistance because the communication served both business and legal purposes;

When email with an attachment is sent to lawyers and non-lawyers in the corporation, neither the email nor the attachment is privileged;

When an email is sent to a lawyer and non-lawyers in the corporation are copied, it raises a question as to whether the communication’s primary purpose was for legal advice or assistance.

Gracious Ruling

The court found that the in-house lawyer failed to adequately describe the questionable emails to permit the court to analyze them under Florida’s subject-matter test. Nonetheless, the court reviewed the emails in camera and sustained most of the privilege objections. The court did find that two emails sent by a non-lawyer to another non-lawyer but copied to the in-house counsel were not privileged. But several other emails involving the in-house lawyer were privileged, a generous ruling given the lack of evidentiary proof of the subject-matter test criteria.